February 28, 2005

Panel Speaks About International Trials

By | February 28, 2005

The Cornell International Law Journal sponsored a symposium this weekend at the Law School entitled “Milosevic and Hussein on Trial.” Various professors, lawyers and human rights specialists participated on a panel, discussing the pertinent issues concerning two of the biggest trials of the century.

The symposium spanned two days, Friday and Saturday, and looked specifically at the challenges prosecuting and defending the former heads of state. The panels on Saturday included, “Global or Local Justice: Who should Try Ousted Leader?” “Perspectives on Transitional Justice: Collective Memory, Command Responsibility, and the Political Psychology of Leadership” and “The Trial Process: Prosecution, Defense, and Investigation.”

The last panel discussion focused on such topics as the right the defendants have to representing themselves, how many and which cases to prosecute, and also drew on past war crimes trials to give a perspective and precedent to how these trials should proceed.

The first speaker, Tom Parker, head of the Coalition Provisional Authority’s (CPA) Crimes Against Humanity Investigation Unit amongst an array of other titles, explained his role on the panel as being that of giving the “political realities” of the cases.

Trying to “set the scene” in Iraq, Parker said of the Iraqi population, “Ninety-eight percent of those interviewed would like to see some kind of punishment … however, only seven percent favored a legal process over execution.”

A question raised by Parker was that of which order to run the trial.

“Most people expect to see Sadam first … but it’s important to build your case up.” Among the various reasons to start low and work towards more prominent trials is the tactic of introducing facts in the trials that have already been accepted by the court. This helps by not allowing the defense to discard them as not credible evidence.

Prof. Michael Newton, law, West Point Military Academy, followed Parker. One major aspect of his presentation was pushing upon the audience the falsity of the assumption that Iraqis are corrupted and have no law system.

“The perception that they don’t have concern about law is just uninformed,” Newton said. To support this, he presented various pieces of evidence such as articles from the Iraqi constitution and various law codes. One such code declared that crimes involving or disrupting the judiciary were to be seen as equally important as crimes against humanity.

This law supported Newton’s claim by showing their commitment to keeping their courts not corrupt, and the seriousness in which they view their system.

Prof. Michael Scharf, law, Case Western Reserve University, spoke next. He focused specifically on the challenges of having a former leader of a nation present himself in trial. He drew on the recent proceedings of the Milosevic trial and the challenges the court faced with having him as his own defense. Among many problems faced, the three 18-hour opening sentences, which were broadcasted to all of Serbia, seemed to have a traumatizing effect on the trial.

“At the time of the trial, Milosevic was one of the most reviled people,” Scharf said. “Half way through he was number four on the list of most respected Serbs.”

Scharf also presented the fact that 75 percent of people polled believed he was not getting a fair trial, and 77 percent thought he was not guilty of the crimes.

Looking at the process with this trial, Scharf brought up the question, “what if Sadam wanted to do the same thing?” Scharf warned that a rise in an opinion poll would be bad in itself, but it could also lead to possible civil war within Iraq.

In the end, Scharf explained that the Iraqi Special Tribunal ruled that Hussein had to be represented by council. Scharf explained that the right to defend one’s self was an obligatory right, but it was also a limited right, and that the defendant would not be offered the right to defend himself if he refused to acknowledge and respect the court.

“This is not a case of unfairness on behalf of IST, but one where they’re getting the law right,” Scharf said.

The works of all the participants in the 2005 symposium will be published in an upcoming issue of The Cornell International Law Journal.

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